This case is before the Authority on a negotiability appeal filed by
the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute). The appeal concerns one proposal relating to
the use of administrative leave for bargaining unit employees who were required
to remain on duty when other employees were dismissed early on December 24 and
31, 1991. The proposal also addresses the availability of administrative leave
for employees who were on annual or sick leave on December 24 and 31, 1991.

We find that the portion of the proposal authorizing administrative
leave for certain employees who were on annual or sick leave on
December 24 and 31 is negotiable. The remainder of the proposal, as it
applies to all other employees, is nonnegotiable under section 7117(a)(1) of
the Statute because it is inconsistent with a Government-wide regulation.

II. Background and Preliminary Matters

At the time of the events giving rise to this dispute, the bargaining
unit consisted of employees of the Agency located in four separate activities:
Rock Island Arsenal (Arsenal); Headquarters, U.S. Army Armament, Munitions and
Chemical Command (AMCCOM), U.S. Army Information Systems Command (ISC), and the
U.S. Army Troop Support Command, Rock Island Arsenal Commissary (Commissary).

On both December 24 and 31, 1991, AMCCOM and ISC dismissed nonessential
employees from work early and placed them on administrative leave, without
charge to annual leave, for the remainder of their duty day. Essential
employees in AMCCOM and ISC as well as the employees in the Arsenal and the
Commissary were not dismissed early. According to the Agency, the early
dismissals of the employees in AMCCOM and ISC were authorized under Federal
Personnel Manual (FPM) chapter 610, subchapter 3, Group Dismissal or Closure of
Activities. In January 1992, the Union requested to bargain with respect to the
dismissals of employees and the parties commenced negotiations. No agreement
was reached.

In March 1992, the Union filed a grievance alleging that the Agency was
engaging in bad faith bargaining. The grievance was submitted to arbitration.
The arbitrator issued a decision in the matter directing the Agency to bargain.
The parties resumed negotiations but were unable to reach agreement. They
jointly requested the assistance of the Federal Service Impasses Panel (the
Panel), which declined to assert jurisdiction on the basis that there was an
outstanding issue concerning the Agency's obligation to bargain over the
Union's proposals. Subsequently, in June 1992, the Agency declared the Union's
proposals nonnegotiable in response to the latter's request for a written
allegation of nonnegotiability.

As a preliminary matter, the Union maintains that the Agency waived its
right to raise an allegation of nonnegotiability. The Union argues, in this
connection, that the Agency's failure to file an exception to the arbitrator's
award essentially signifies that the Agency's refusal to bargain was based
solely on an interpretation of the parties' agreement and was not predicated on
an alleged inconsistency with law, rule, or regulation. In addition, the Union
asserts that the Agency's participation in a joint request for Panel assistance
indicates that it was in agreement with the Union that the parties were at
impasse, rather than involved in a negotiability dispute. The Agency did not
respond to these arguments.

We reject the Union's contentions. In our view, the Agency's failure to
except to an arbitral award requiring bargaining over the 1991 group dismissals
does not establish that the Agency waived its right to contest the
negotiability of a proposal resulting from those negotiations. Under section
7117 of the Statute and section 2424.1 of the Authority's Rules and
Regulations, the Authority will consider a petition for review of a
negotiability issue where the parties disagree over whether a proposed matter
conflicts with law, rule, or regulation. See, for example,
National Association of Government Employees, Local R1-109 and U.S.
Department of Veterans Affairs, Medical Center, Newington, Connecticut,
38 FLRA 928, 931 (1990). In this case, the Agency declared the proposal
nonnegotiable on the basis that it is inconsistent with management's right to
assign work under the Statute and with regulations governing administrative,
sick, and annual leave. Where, as here, the conditions governing review of a
negotiability appeal have been met, the Authority is required to determine
whether a proposal is negotiable under the Statute. See, for
example, American Federation of Government Employees, AFL-CIO, Local
2736 v. FLRA, 715 F.2d 627, 630-31 (D.C. Cir. 1983). To the extent the
Union raises other issues concerning the Agency's bargaining obligation, those
issues should be addressed in other appropriate proceedings. SeeAmerican Federation of Government Employees, AFL-CIO, Local 2736 and
Department of the Air Force, Headquarters 379th Combat Support Group (SAC),
Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).(1)

III. The Proposal

1. All bargaining unit employees not afforded an opportunity for
early release on December 24th and 31st of 1991 be given an opportunity to use
four (4) hours of administrative leave for each of the days. The use of the
administrative leave will be subject to the approval of the appropriate
supervisor. Approval will be based on the same criteria used for the approval
of annual leave.

2. Employees in an annual leave or sick leave status on December 24th
and 31st 1991 will be re-credited with one hour of administrative leave for
each hour of AL or SL not to exceed four (4) hours for each day.

3. Employees using less than four (4) hours of leave on each of those
days will be credited with one hour of administrative leave for hour of AL or
SL used. Any additional hours of administrative leave (up to four (4) hours per
day) will be available for use as provided for in part #1 of this
proposal.

A. Positions of the Parties

1. Agency

The Agency contends that the proposal which, in its view, provides
certain employees with a bank of 8 hours of administrative leave, is
inconsistent with the provisions of the FPM governing excused absences for
individual employees, for group dismissals, and closures of activities. The
Agency also maintains that the proposal violates laws and Government-wide
regulations governing the purposes and uses of annual and sick leave. In
addition, in its allegation of nonnegotiability, the Agency claimed that the
proposal was also inconsistent with the right to assign work under section
7106(a)(2)(B) of the Statute.

Specifically, the Agency maintains that the proposal is inconsistent
with FPM chapter 610, subchapter 3, governing group dismissals, because it
seeks administrative leave for essential employees in AMCCOM and ISC whose
services were required on December 24 and 31, 1991. According to the Agency,
the FPM provision applies only to dismissals of non-essential employees.

The Agency also argues that the proposal is inconsistent with FPM
chapter 630, subchapter 11, governing administrative leave for individuals,
because the proposal allows for the use of administrative leave for personal
purposes. The Agency explains that the use of administrative leave for personal
purposes is inconsistent with the FPM and quotes section 11-5b of subchapter 11
as permitting excused absences only "for the benefit of the agency's mission or
a Government[-]wide recognized and sanctioned purpose." According to the
Agency, the fact that the proposal provides that the use of administrative
leave will be based on the same criteria as the approval for annual leave is
evidence that the proposal is intended to allow for the use of administrative
leave for personal purposes. In support of its position that the proposal is
inconsistent with the cited regulation, the Agency cites American Federation
of Government Employees, AFL-CIO, National Council of VA Locals and Veterans
Administration, 29 FLRA 515, 557 (1987), remanded as to other
matters sub nom.Veterans Administration v. FLRA, No. 87-1727 (D.C.
Cir. Sept. 27, 1988), decision on remand, 33 FLRA 472 (1988)
(Proposal 6B), and American Federation of Government Employees, AFL-CIO,
Local 3804 and Federal Deposit Insurance Corporation, Madison Region,
21 FLRA 870, 894-99 (1986) (Proposal 15).

The Agency also disputes the Union's reliance on various Authority
decisions in which proposals authorizing the use of administrative leave were
found negotiable. The Agency asserts that several of those decisions addressed
the leave status of employees whose services the agencies determined were not
needed during periods of temporary shutdowns. In contrast, the Agency argues
that the proposal here addresses "granting a bank of administrative leave for
employees whose services were needed by the [A]gency." Statement of Position
at 8. The Agency further asserts that an additional Authority decision
cited by the Union addressed the use of leave for employee counseling. In the
Agency's view, such counseling constituted a work-related matter, unlike the
proposal in this case, which addresses the use of administrative leave "for
personal reasons unrelated to the mission of the [A]gency." Id. Further,
the Agency maintains that the FPM does not authorize administrative leave
"solely for the purpose of equity." Id. at 6.

In addition, the Agency contends that the proposal conflicts with
5 U.S.C. chapter 63, because it would allow for the accumulation of annual
and sick leave beyond the amount specified in that chapter. The Agency explains
that 5 U.S.C. §§ 6303 and 6707 specify the amount of annual
and sick leave an employee is entitled to accrue and do not provide for the
accumulation of any additional leave.

The Agency further argues that the proposal is inconsistent with
regulations governing the administration of annual and sick leave. The Agency
maintains, for example, that the proposal allows for administrative leave to be
used for the same reasons as annual and sick leave, despite the fact that FPM
chapter 630 "does not contemplate the use of administrative leave where sick or
annual leave would be appropriate." Id. at 7. In support of its
position, the Agency cites American Federation of Government Employees,
AFL-CIO, National Council of SSA Field Operations Locals and Social Security
Administration, 25 FLRA 622, 626-27 (1987) (Social Security
Administration), affirmed as to other matters, 836 F.2d 1408
(D.C. Cir. 1988) (Proposal 3).

2. Union

In its petition for review, the Union explains that the "proposal
provides an opportunity for employees of the bargaining unit to have equal
access to time off work without charge to leave as provided to some [other]
bargaining unit members." Petition for Review at 1. More specifically as to
part 1 of the proposal, the Union states that it is designed to provide equal
treatment of bargaining unit employees who were not released from duty on
December 24 and 31, 1991. The Union further states that the proposal permits
the Agency to approve the use of administrative leave based on its "ability . .
. to release the employee from work." Id. at 2. As to parts 2 and 3 of
the proposal, the Union explains that these sections allow for absences based
on previously approved leave to be charged to administrative leave. However,
the Union notes that the Agency would not be required to recredit the leave
accounts of employees on annual and sick leave under parts 2 and 3 of the
proposal if the Agency provides those employees with the administrative leave
authorized in part 1 of the proposal.

The Union maintains that the proposal is similar to prior Authority
decisions in which proposals authorizing the use of administrative leave were
found negotiable. The Union states, as a general matter, that proposals are
negotiable when management retains the discretion to approve the use of leave.
According to the Union, because the Agency retains control of when to approve
the use of the administrative leave, the proposal does not interfere with
management's right to assign work. The Union also contends that the proposal is
not "violative of any law, rule or applicable regulation." Response at 3.

In addition, the Union asserts that the proposal is consistent with
both FPM chapter 630, subchapter 11, governing administrative leave for
individuals, and FPM chapter 610, subchapter 3, governing administrative leave
for group dismissals. More particularly as to chapter 630, the Union states
that agency heads may release employees for short periods of time and that
subchapter 11-4 is designed to "'[p]romote equity and consistency in the
granting of individual requests for excused absence.'" Response at 2,
quoting FPM chapter 630, subchapter 11-4b. The Union further notes that FPM
chapter 630, subchapter 11-1 states that that subchapter provides guidance on
the granting of excused absence and is not "'intended to be a comprehensive
index of all instances in which excused absence may be granted[.]'" Response
at 2, quoting FPM chapter 630, subchapter 11-1. With respect to dismissals
under FPM chapter 610, the Union adds that under subchapter 3, the Agency has
"discretionary authority . . . to release non-essential personnel for
the personal benefit of those employees on the two holiday [evenings]."
Response at 2-3.

B. Analysis and Conclusions

Under section 7117(a)(1) of the Statute, we will find a proposal
nonnegotiable if it is inconsistent with Federal law or a Government-wide rule
or regulation. For the following reasons, we conclude that the proposal, in
part, is inconsistent with FPM chapter 630, subchapter 11. Accordingly, to that
extent, the proposal is nonnegotiable. We also find, as explained more fully
below, that a portion of the proposal is negotiable.

Initially, we note that during the pendency of this case, various
provisions of the FPM were abolished and others were provisionally retained
through December 31, 1994. See FPM Sunset Document at 1. FPM
chapter 610 was abolished. Seeid., Chapter Summary Sheet
at 77. FPM chapter 630, subchapter 11, has been provisionally retained.
Id. at 78. We also note that there are provisions contained in the
Code of Federal Regulations (CFR) that address administrative dismissals for
employees who are paid on a daily, hourly, or piecework basis. Although neither
of the parties made specific arguments with respect to the applicability of
those provisions to this case, we will discuss them, where appropriate.
See 5 C.F.R. part 610, subpart C.

In addressing the negotiability of the proposal before us, we will not
apply the provisions contained in FPM chapter 610, insofar as that chapter has
been abolished. We will, however, apply the FPM provisions that have been
provisionally retained. In this regard, the Authority has often stated that in
resolving cases before it, it applies the law that exists at the time each case
is decided. See, for example, American Federation of
Government Employees, AFL-CIO, Council of Marine Corps Locals, Council 240 and
U.S. Department of the Navy, Headquarters, U.S. Marine Corps, Washington,
D.C, 39 FLRA 839, 845 (1991). This includes the application of
provisions contained in Government-wide regulations in ruling on the
negotiability of proposals. SeeNational Association of Government
Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S.
Department of the Navy, Naval Underwater Systems Center, Newport,
Rhode Island, 43 FLRA 47, 51 n.2 (1991). In this latter
connection, the Authority previously has found that FPM chapter 630, subchapter
11 is a Government-wide regulation. SeeInternational Organization of
Masters, Mates and Pilots and U.S. Department of the Navy, Chief of Naval
Operations, Washington, D.C., 47 FLRA 218, 223 (1993) (Department
of the Navy).

Turning now to the instant proposal, we find that it seeks a
retroactive grant of administrative leave for all employees who were required
to work on December 24 and 31, 1991, regardless of whether they were
deemed essential or non-essential employees. The proposal also seeks a
retroactive grant of administrative leave for all employees who were on annual
or sick leave on December 24 and 31, 1991.

The Authority previously has described the circumstances under which
agencies are authorized to grant administrative leave or, more specifically,
brief periods of excused absence without charge to leave or loss of pay,
consistent with FPM chapter 630, subchapter 11.(2)See, for example,
National Treasury Employees Union and Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, 41 FLRA 1106 (1991) (Provision 6),
petition for review dismissed, 953 F.2d 687 (D.C. Cir. 1992). An
example of the appropriate use of excused absence includes participation in
counseling and/or treatment sessions relating to an agency's drug testing
program. Seeid. Other examples, as specified in subchapter 11,
include time off for registration and voting, blood donation, and attendance at
conferences and conventions that serve the interests of the Federal service.
While we have stated that FPM chapter 630, subchapter 11 "do[es] not prescribe
mandatory requirements governing the grant of administrative leave[,]" we find
here that the granting of such leave is restricted to the general circumstances
described in the FPM. SeeU.S. Department of Justice, Immigration and
Naturalization Service, Washington, D.C. and National Immigration and
Naturalization Service Council, Local 46, American Federation of
Government Employees, AFL-CIO, 48 FLRA 1269, 1276 (1993). SeealsoDepartment of the Navy. Thus, we conclude from the foregoing
that in order to find that administrative leave is consistent with FPM chapter
630, subchapter 11, the purpose for which the leave is sought must bear some
relationship to the situations described in subchapter 11 for which an excused
absence may be appropriate. SeeDepartment of the Navy,
47 FLRA at 224 ("The appropriateness of a proposal involving
administrative leave is based on its consistency with FPM chapter 630,
subchapter 11").

Addressing first the employees in the Arsenal and the Commissary, and
the essential employees in AMCCOM and ISC, who were not released early from
duty on December 24 and 31, 1991, we find that the Union is seeking
administrative leave for a purpose that is outside the ambit of FPM chapter
630, subchapter 11. In Department of the Navy, the proposal was designed
to permit the exchange of overtime payment for administrative leave. We held
that there was no provision in FPM chapter 630, subchapter 11 authorizing the
use of administrative leave for the purpose sought by the Union and, therefore,
that the proposal was inconsistent with that FPM subchapter. We reach the same
result here.

As explained by the Union, the proposal is designed to provide equal
treatment for bargaining unit employees who were not released early on
December 24 and 31, 1991, and to provide them with a personal benefit.
Thus, the proposal would provide administrative leave to employees who were
required to work on the dates in question. We see nothing in FPM chapter 630,
subchapter 11 that suggests that administrative leave is appropriate in such a
situation. SeealsoNational Federation of Federal Employees,
Local 3 and U.S. Department of Transportation, United States Coast Guard,
Milwaukee, Wisconsin, 45 FLRA 805 (1992) (Coast Guard)
(proposals requiring agency to grant administrative leave to bargaining unit
employees whenever nonessential military personnel were granted such leave
found to directly and excessively interfere with the right to assign work;
additionally, the proposals were unlike proposals where administrative leave
was sought for periods of agency shutdowns). Additionally, while the Union
notes that FPM chapter 630, subchapter 11-4 is designed to promote equity and
consistency in the granting of excused absences, that goal is predicated on the
appropriate use of excused absences. To the extent the proposal seeks
administrative leave for employees in the Arsenal and the Commissary and the
essential employees in AMCCOM and ISC who were required to work on
December 24 and 31, 1991, we find that the proposal is inconsistent with
FPM chapter 630, subchapter 11.

We also reject the Union's assertion that the proposal is negotiable
because it permits the Agency to approve the use of administrative leave
consistent with the Agency's needs. As we stated above, in ascertaining the
appropriateness of administrative leave, we must determine whether that leave
is consistent with FPM chapter 630, subchapter 11. Having found that the
proposal granting the right to the administrative leave is inconsistent with
that subchapter, we need not address whether the proposal is consistent with
the Agency's right to approve the use of such leave.

Finally, we find that the provisions contained in 5 C.F.R.
§§ 610.301-610.306 do not alter our conclusion that the proposal
is nonnegotiable with respect to the above-noted employees. Those provisions
govern administrative dismissals of daily, hourly, and piecework employees for
situations such as the interruption of normal operations by events beyond the
control of management or employees, the closing of an establishment for short
periods of time for managerial reasons, or where the public interest allows
employees to participate in civil activities. Additionally, agencies may, by
regulation, authorize dismissals under other circumstances. Assuming that the
employees in this case are covered by these provisions, we do not see how the
provisions would operate to authorize a dismissal where, in fact, the employees
in the Arsenal and the Commissary and the essential employees in AMCCOM and ISC
were required to work on December 24 and 31, 1991. CompareU.S.
Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and
International Federation of Professional and Technical Engineers, Planners,
Estimators, Progressmen & Schedulers Association, Local 5, 48 FLRA
1372 (1994) (arbitration award found not to conflict with 5 C.F.R.
§ 610.302 where the arbitrator directed the agency to grant employees
administrative leave during a 4-day shutdown).

Next, we address the proposal insofar as it seeks administrative leave
for employees in AMCCOM and ISC who were on annual or sick leave on
December 24 and 31, 1991. For the following reasons, we find that the
proposal is negotiable as to these employees.

First, we find no merit to the Agency's claim that the proposal
conflicts with 5 U.S.C. chapter 63 because it would allow for the
accumulation of annual and sick leave in amounts greater than authorized by
law. There is nothing in the language of the proposal or the Union's
explanation as to the manner in which it will operate that supports the
Agency's contention.

We also reject the Agency's argument that the proposal is nonnegotiable
under FPM chapter 630, subchapter 11. As we noted previously, the Agency
dismissed non-essential employees in AMCCOM and ISC from work early on
December 24 and 31, 1991, pursuant to FPM chapter 610, which governed
group dismissals. By its terms, subchapter 11 "do[es] not apply to group
dismissals or closures of activities." FPM chapter 630, subchapter 11-6.
Because the employees at issue were in the Agency components that were part of
a group dismissal, we find that FPM chapter 630, subchapter 11 does not apply.
Therefore, unlike our discussion with respect to the employees who were not
released early on December 24 and 31, 1991, we need not determine whether
the purpose for which the administrative leave is sought is appropriate.
Accordingly, contrary to the Agency, we find that subchapter 11 does not bar
negotiations over the proposal with respect to the employees in AMCCOM and ISC
who were on annual or sick leave on December 24 and 31, 1991.

Further, we find no merit to the Agency's assertion that the proposal
is inconsistent with regulations governing the administration of annual and
sick leave because those regulations do not contemplate the use of
administrative leave where annual or sick leave would be appropriate. The
Agency did not cite the particular regulations on which its argument is
premised, other than FPM chapter 630. However, the Agency relied on Social
Security Administration in support of its position and, in that case, the
Authority discussed the requirements of FPM chapter 630, subchapter 3-4.a(2).
Therefore, it is logical to presume that the Agency's argument is based on that
regulatory provision. However, as we stated earlier, FPM chapter 630,
subchapter 3 has been abolished. Thus, reliance on that regulatory provision
cannot serve as a bar to negotiations over the proposal.

Finally, we find no merit to the Agency's contention that the proposal
is inconsistent with the right to assign work under section 7106(a)(2)(B) of
the Statute. It is well established that proposals that require management to
grant leave prevent management from requiring employees to remain on duty to
perform work and, thus, directly interfere with that management right.
See, for example, Coast Guard, 45 FLRA at 809.
In this case, the proposal explicitly states that the use of administrative
leave will be subject to the approval of the appropriate supervisor and that
such approval will be based on the same criteria as the approval of annual
leave. Because the proposal preserves the Agency's right to approve the use of
administrative leave, we find that there is no direct interference with the
right to assign work. CompareAmerican Federation of Government
Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st
Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 378-81
(1991) (proposal that did not preserve the agency's right to decide whether or
not to grant requests for administrative leave held to directly interfere with
the right to assign work).

IV. Summary

We find that the proposal is negotiable insofar as it pertains to the
employees in AMCCOM and ISC who were on annual or sick leave on
December 24 and 31, 1991. We further find that the proposal is
nonnegotiable as it applies to employees of the Arsenal and the Commissary and
the essential employees in AMCCOM and ISC.

V. Order

The Agency shall upon request, or as otherwise agreed to by the
parties, negotiate over the proposal to the extent described above.(3) The petition for review is
dismissed to the extent that the proposal has been found nonnegotiable.

APPENDIX

11-6 Procedures The following guidelines are offered for
agencies to use when administering the granting of excused absence. These
guidelines do not apply to group dismissals or closures of activities. (See FPM
Chapter 610, subchapter 3).

a. Registration and Voting. It is long-established executive policy
to grant excused absence to employees for a reasonable time, without seriously
interfering with operations, to register or vote in Federal, State, county or
municipal elections or in referendums on any civic matter in their
community. . . .

b. Military Funerals. Employees who are veterans of declared wars or
who served in a campaign or expedition for which a campaign badge has been
authorized, or who are members of an honor or ceremonial group of those
veterans may be granted excused absence . . . .

c. Agency Determinations. Agencies generally determine the situations
in which they will excuse employees from duty. The following are examples of
recurring situations which may warrant excused absence and for which agencies
may have a written policy or may delegate decisions to supervisors.

(1) Blood Donation. Employees who make blood donations may be granted
excused absence to travel to the donation site and/or to recover.

(2) Taking Examinations. Employees who take examinations required by
their present positions, including reexaminations, may be granted excused
absence.

(3) Tardiness and Brief Absences. Unless an agency establishes a
minimum charge of less than 1 hour, or establishes a different minimum
charge through negotiations, the minimum charge for leave is 1 hour and
additional charges are in multiples thereof. . . .

(4) Conferences or Conventions. Employees may be granted excused
absence to attend conferences or conventions when attendance will serve the
best interests of the Federal service. . . .

(5) Special Events. Individual employees may be granted excused
absence to participate in civil activities which the Government is interested
in recognizing or encouraging. Agency heads should make these decisions on a
case-by-case basis.

(7) Volunteer Activities. Employees may be granted excused absence
for short periods of time to participate in volunteer activities . . .
.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. In a letter to the Authority the
Union stated that it has filed an unfair labor practice charge and has elected
to proceed with the negotiability appeal first. See section 2424.5 of
the Authority's Rules and Regulations.

2. Those circumstances, described in
FPM chapter 630, subchapter 11-6, are set forth in the Appendix to this
decision.

3. In finding a portion of the proposal
negotiable, we make no judgment as to its merits.